Dimple, PBY plane, Cessna 182, Coral Star, Aztec N550US.
The method of operation in the Indiana case involved the
loading of aircraft or boats with marijuana in Colombia then
transporting it to the United States via a refueling stop or
longer stop period in the Bahamas. In order to secure safety in
the Bahamas, highly placed Bahamian officials were bribed.
Defendant testified to one airdrop incident during 1977 through
1981, which he claims the government was unaware of the venture.
The marijuana was imported into the United States to Florida or
Georgia and then distributed.
The method of operation in the Tampa case involved the loading
of marijuana in Jamaica and the loading of cocaine from deep
within the Colombian borders. The drugs were then transported to
the United States via direct route, Cancun, Mexico, infrequently
through the Bahamas (at least not enough to require bribing
officials to secure safe passage). The drugs were transported by
aircraft and airdropped and then speed boats would pick up the
packages or coolers and smuggle them into the United States for
It is the defendant's position that the use of the planes and
boats overlapped supporting his claim that there existed but one
single conspiracy. Defendant claims that although the exact same
vehicles did not overlap the manner in which money was obtained
to initially purchase the vehicles was the same throughout all of
his smuggling ventures. He further claims that the proceeds from
the sale of one vehicle was used to purchase another vehicle to
be used for smuggling purposes and therefore a continuity
remained and establishes an overlap of vehicles. A careful review
of the record discloses that ten of the vehicles were either
confiscated by the authorities, destroyed in some manner (i.e.
crashed, sunk or blown up), or stolen. The Rio Grande and the
Westwind were owned by Colombians. One was returned to Sunny
South to sell and payoff remaining debt. One was given to Billy
Albury in lieu of a money debt. One vehicle was given to the
Wrinkle Construction Company, and Morrison owned the Adventurer.
A few of the vehicles were purchased with money obtained from the
proceeds of prior smuggling ventures, and some of the vehicles
were purchased on a payment plan.
Although some of the proceeds from smuggling ventures or the
proceeds from the sale of certain vehicles were used to purchase
other vehicles used in smuggling ventures none of the vehicles
used during smuggling activities during the time period of the
Indiana indictment overlapped with vehicles used during the time
period of the smuggling activities of the Tampa indictment. The
fact that the same type of proceeds and proceeds from the sale of
some vehicles were used to further defendant's smuggling
operations does not conclusively prove that there existed only
one single conspiracy.
With regard to the use of the smuggling venture proceeds and
the proceeds received from the sale of the vehicles, it is
important to look at the interdependence of the two conspiracies.
From the testimony of the defendant, and the record before this
court, it discloses that there was in actuality little if any
interdependence of the second conspiracy on the events or
proceeds of the first conspiracy. Many of the vehicles used in
the smuggling ventures were owned or purchased by other
conspirators, and most of the time the illegal drugs were
provided to defendant before any payment was made. Although the
proceeds from ventures and the sale of vehicles were used at
times to purchase other vehicles used in subsequent ventures, it
was never shown that defendant's ability to participate in the
smuggling ventures required his own vehicles. Several times
defendant would borrow money up front from a co-conspirator to
purchase a vehicle to carry out a smuggling operation and then
pay them for the "loan" after the venture.
Other than the fact that defendant was involved in the
smuggling operations charged in both indictment, and the fact
that smuggling was the illegal activity, and that defendant
worked with other smuggling
organizations and he maintained a role of organizer, manager, and
supervisor over at least five individuals during these various
smuggling ventures, there are very few similarities between the
Indiana case and the Tampa case. The objective of the
conspiracies were different, the participants were different, the
manner of operation, i.e., vehicles used, locations used,
importation methods used, and the agreements between the
conspirators were different as well as the time periods were
The continuing criminal enterprise charged against defendant in
Indiana had been complete before he was indicted in the Tampa
indictment. The Indiana CCE took place from 1978 through early
1981 (as far as this defendant was involved), and the Tampa CCE
took place from February 1982 through March 1983. The evidence
establishes that the Indiana CCE was a different CCE than the
Tampa CCE. The defendant admitted that there clearly existed more
than one agreement forming the different conspiracies.
In United States v. Stricklin, 591 F.2d 1112 (5th Cir. 1979),
at page 1117 Judge Hill stated:
Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034,
52 L.Ed.2d 651 (1977), held that the denial of a
motion to dismiss an indictment on double jeopardy
grounds results in an appealable final order. Thus,
the double jeopardy issue maybe decided and appealed
before a record of the trial on the challenged
indictment is made. Abney may be applied without
serious complexity where the indictments and the
record from the previous trial are sufficiently
explicit to provide for clear-cut determination of
the double jeopardy claim. For example, where X is
once indicted and tried for the murder of Y, a
subsequent indictment charging that X murdered Y
would clearly violate X's Fifth Amendment right not
to be twice put in jeopardy for the same offense.
Where, however, the charges in two or more
indictments involve crimes such a complicated or
far-reaching conspiracies, as in this case, the
application of Abney can be troublesome, especially
when one of the previous indictments did not result
in a trial and the creation of a record. It is
necessary, then, to establish procedural rules for an
Abney pretrial double jeopardy hearing, so that
requirements such as going forward with proof, burden
of persuasion, and weight of the evidence are
equitably assigned to and understood by the parties.
The Third Circuit was recently confronted with an
identical task in United States v. Inmon,
568 F.2d 326 (3d Cir. 1977). We adopt their well-reasoned
opinion in that case as the law in this Circuit,
along with such modifications and additions as our
comments may provide.
It is undisputed that the burden of going forward by
putting the double jeopardy claim in issue is and
should be on the defendant. It is similarly
reasonable to require the defendant to tender a prima
facie nonfrivolous double jeopardy claim before the
possibility of a shift of the burden of persuasion to
the government comes into play. Once the defendant
has come forward with such a prima facie nonfrivolous
claim, however, we are faced with determining whether
the defendant or the government should carry the
burden of persuasion from that point forward. The
Third Circuit in Inmon concluded that the burden
should then be placed on the government, basing its
decision on practical considerations concerning
access to proof and on the government's control over
the particularity with which indictments are drafted.
568 F.2d at 329-32. Accord, United States v. Mallah,
503 F.2d 971 (2d Cir. 1974), cert. denied,
420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). We agree,
for similar reasons, that the burden of establishing
that the indictments charge separate crimes is most
equitably placed on the government when a defendant
has made a nonfrivolous showing that an indictment
charges the same offense as
that for which he was formerly placed in jeopardy.
Stricklin even if fully applicable in this Circuit, does not
support this defendant's double jeopardy claim or defense.
Examined in the light of the analysis in U.S. v. Cerro,
775 F.2d 908 (7th Cir. 1985), the record here discloses that the
indictment here and the one in Tampa were for similar but
separate and distinct offenses.
The same is true when this record is examined in light of the
factual contest of U.S. v. West, 670 F.2d 675 (7th Cir. 1982),
with which this court is most familiar. The same can be said for
U.S. v. Sinito, 723 F.2d 1250, 1255 (6th Cir. 1983), cert.
denied, ___ U.S. ___, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984).
This court has been much influenced by the dissenting opinion
of Judge Arlin Adams in United States v. Sargent Elec. Co.,
785 F.2d 1123 (3d Cir. 1986) at page 1134 and takes the liberty to
set out two extended quotes therefrom:
The Fifth Amendment of the Constitution provides that
no person shall "be subject for the same offense to
be twice put in jeopardy of life or limb." The bar
against double jeopardy was taken from the English
common law, where the concept developed as early as
the thirteenth century. See, e.g., United States v.
Wilson, 420 U.S. 332, 339-40 & n. 6, 95 S.Ct. 1013,
1019-20 & n. 6, 43 L.Ed.2d 232 (1975); Bartkus v.
Illinois, 359 U.S. 121, 151-55, 79 S.Ct. 676,
695-697, 3 L.Ed.2d 684 (1959) (Black, J.,
dissenting); Kirk, "Jeopardy" During the Period of
the Year Books, 82 U.Pa.L.Rev. 602 (1934). Among
other things, the clause was designed to protect
against a second prosecution for a single offense and
multiple punishments for the same offense. See North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076, 23 L.Ed.2d 656 (1969). The Supreme Court has
repeatedly stressed that the guarantee against double
jeopardy is "a fundamental ideal in our
constitutional heritage." Benton v. Maryland,
395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707
This Court has adopted the "same evidence" test for
assessing double jeopardy claims. See United States
v. Young, 503 F.2d 1072, 1076 (3d Cir. 1974). Under
this test, a second indictment for an offense
violates the double jeopardy clause "only when the
evidence required to support a conviction upon [the
offense] would have been sufficient to warrant a
conviction upon" a prior indictment. Id. at 1075
(quoting United States v. Pacelli, 470 F.2d 67, 72
(2d Cir. 1972). However, Young cautioned that
application of the same evidence test "must be
tempered . . . with the consideration that a single
conspiracy may not be subdivided arbitrarily for the
purposes of prosecution." Id. As we explained there,
"[d]ifferent alleged overt acts are not necessarily
inconsistent with an improper division of a single
conspiracy into multiple crimes. It is the agreement
which constitutes the crime, not the overt acts." Id.
at 1076. See also U.S. v. Felton, 753 F.2d 276 at 278
(3rd Cir. 1985).
Other courts, noting the difficulties of applying the
same evidence test in assessing claims that a second
indictment on a charge of conspiracy violates the
double jeopardy clause, have adopted a "totality of
the circumstances" standard. See, e.g., [U.S. v.]
Korfant, 771 F.2d  at 662 [2nd Cir. 1985];
United States v. Thomas, 759 F.2d 659, 661-62 (8th
Cir. 1985); United States v. Sinito, 723 F.2d 1250,
1256 (6th Cir. 1983); cert. denied, ___ U.S. ___, 105
S.Ct. 86, 83 L.Ed.2d 33 (1984); United States v.
Castro, 629 F.2d 456, 461 (7th Cir. 1980); United
States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978).
Under the totality of the circumstances approach, a
court will consider the degree of overlap between the
two charged conspiracies in the following factors:
(1) the criminal offenses charged in the successive
indictments; (2) the participants: (3) the time
periods involved; (4) similarity of operation; (5)
the overt acts alleged; (6) the geographic scope of
the alleged conspiracies or locations where overt
acts occurred; and (7) the objectives of the alleged
conspiracies. Additionally, it will look to whether
any other signs of interdependence between the two
charged conspiracies exist. See Korfant, 771 F.2d at
662; Thomas, 759 F.2d at 661-62. The ultimate
question under the totality of the circumstances
approach, as under the same evidence test, is
"whether there [was] more than one agreement."
Sinito, 723 F.2d at 1256. See also [U.S. v.] Beachner
Construction Co., 729 F.2d  at 1281
[10th Cir. 1984] (bid-rigging case); Braverman v.
United States, 317 U.S. 49, 53,
63 S.Ct. 99, 101, 87 L.Ed. 23 (1942) ("The gist of
the crime of conspiracy is the agreement."); Young,
503 F.2d at 1076.
It has taken slightly longer than this court would prefer to
research and write this memorandum. The extra time was absolutely
necessary to give this factual record the special attention the
constitutional issue here presented demands.